(2004) 124 Cal. App. 4th 951
Court of Appeal, Fourth District, Division 3, California.
Thomas J. McKINNEY, Petitioner,
The SUPERIOR COURT of San Diego County, Respondent;
City of San Diego, et al., Real Party In Interest.
Dec. 7, 2004.
Review Denied Jan. 12, 2005.
John W. Howard, San Diego, Thomas J. McKinney; Neil, Dymott, Brown, Frank
& Harrison, Michael I. Neil, San Diego, and James E. Gallegos for
No appearance for Respondent.
Casey Gwinn, City Attorney, Anita M. Noone, Assistant City Attorney and
James M. Chapin, Senior Deputy City Attorney, for Real Parties in Interest
City of San Diego and Charles Abdelnour.
Robert P. Ottilie, San Diego, for Real Party in Interest Dick Murphy.
Coast Law Group, Rory R. Wicks, San Diego, and Marco A. Gonzalez, Coral
Gable, FL, for Real Party in Interest Donna Frye.
John J. Sansone, County Counsel, and Timothy M. Barry, Senior Deputy County
Counsel, for Real Parties in Interest County of San Diego and Sally McPherson.
Baker & Hostetler and Jack I. Samet, Los Angeles, for Amicus Curiae
Lawrence W. Stirling.
Strumwasser & Woocher, Michael J. Strumwasser, Frederic D. Woocher,
Gregory G. Luke and Aimee Dudovitz for Amici Curiae Martha Ready and John T. Ready.
John Witt, San Diego, for Amicus Curiae John Witt.
California statutory law enumerates seven specific grounds by which the
results of an election can be contested (see Elec.Code, § 16100 [FN1])
so that, under certain circumstances, the election can be set aside and
a new election held. [FN2] California case law holds that these seven
grounds are the exclusive statutory grounds for post-election challenges.
[FN3] Although election results can be challenged under section 16100
on the ground that the winner is ineligible, the statute does not contemplate
challenges based on the fact that one of the runners-up is ineligible.
FN1. All nonspecific statutory references in this opinion are to the Elections
Code. Section 16100 provides:
"Any elector of a county, city, or of any political subdivision of
either may contest any election held therein, for any of the following causes:
"(a) That the precinct board or any member thereof was guilty of
"(b) That the person who has been declared elected to an office was
not, at the time of the election, eligible for that office.
"(c) That the defendant has given to any elector or member of a precinct
board any bribe or reward, or has offered any bribe or reward for the
purpose of procuring his election, or has committed any other offense
against the elective franchise defined in Division 18 (commencing with
"(d) That illegal votes were cast.
"(e) That eligible voters who attempted to vote in accordance with
the laws of the state were denied their right to vote.
"(f) That the precinct board in conducting the election or in canvassing
the returns, made errors sufficient to change the result of the election
as to any person who has been declared elected.
"(g) That there was error in the vote-counting programs or summation
of ballot counts."
FN2. E.g., Bradley v. Perrodin (2003) 106 Cal.App.4th 1153, 1167, 131 Cal.Rptr.2d
402: "When an otherwise successful candidate ... is subsequently
found to have committed an offense or offenses against the elective franchise,
her election may be annulled even if the number of unqualified voters
she fraudulently registered or the number of votes she unlawfully solicited
were too few to have changed the outcome of the election."
FN3. See Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th
165, 192, 105 Cal.Rptr.2d 214, 19 P.3d 567, quoted later in the opinion.
In the case before us now, a post-election challenge has been brought on
the theory that one of the losers in the election--a write-in candidate
at that-- was ineligible for office and her presence affected the outcome.
This challenge, as we explain in more detail below, should have been brought
before the election.
On November 2, 2004, San Diego held a runoff election for mayor. The candidates
on the ballot were the two top vote getters from the primary, mayor Dick
Murphy and county supervisor Ron Roberts. However, about five weeks before
the election the city clerk had qualified a third person as a write-in
candidate, city councilmember Donna Frye. Accordingly, the ballot also
provided for write-ins.
It turned out to be a very close election indeed. Mayor Murphy and the
write-in candidate, councilmember Frye, received about 34 percent of the
votes each (with Murphy apparently receiving a few more), with supervisor
Roberts receiving the rest.
We express no opinion on the issue as to whether the failure on the part
of some voters who wrote in Frye's name to also blacken an oval next
to it means that those votes should, or should not, be counted. As will
be made clear, the particular case before us--which is brought by a voter
who wants another election without Frye on the ballot--is resolvable independent
of the undarkened oval question.
The voter in question is Thomas McKinney. In the wake of the election,
McKinney filed a complaint on November 8, which as amended November 12,
sought declaratory and injunctive relief and an election contest. In that
complaint McKinney seeks a writ of mandate which would annul the San Diego
mayoral election and have the court order a new election on the theory
that the qualification of Frye's write-in candidacy by the city clerk
was in contravention of San Diego's city charter.
The theory behind McKinney's challenge goes like this: In 1985, the
California Supreme Court in Canaan v. Abdelnour (1985) 40 Cal.3d 703,
221 Cal.Rptr. 468, 710 P.2d 268 held that San Diego could not preclude
write-ins in its runoff election for mayor. However, in 2002, the California
Supreme Court held in Edelstein v. City and County of San Francisco (2002)
29 Cal.4th 164, 126 Cal.Rptr.2d 727, 56 P.3d 1029 that precluding write-ins
in San Francisco's mayoral election was perfectly constitutional and
even went on to overrule Canaan to the extent that it held otherwise.
Since the San Diego charter specifically says that the "only candidates"
in the mayoral runoff election shall be the two top vote getters from
the primary, [FN4] and Canaan was overruled to the extent that it held
San Diego couldn't preclude write-ins, it follows that the city clerk,
in qualifying Frye as a write-in candidate, violated the city charter's
now revived in the wake of Edelstein. Moreover, even though the city municipal
code was amended to allow for write-ins in mayoral runoff elections in
the wake of Canaan, it is trumped by that now revived city charter (cf.
Domar Electric, Inc. v. City of Los Angeles (1994) 9 Cal.4th 161, 170,
36 Cal.Rptr.2d 521, 885 P.2d 934).
FN4. A formulation which is even more restrictive than the one in San Francisco's
charter analyzed in Edelstein; the phrase "only candidates"
was not to be found in the charter provision construed there. (See Edelstein,
supra, 29 Cal.4th at p. 169, fn. 2, 126 Cal.Rptr.2d 727, 56 P.3d 1029.)
We also do not express any opinion as to whether the qualification of Frye
by the city clerk was indeed in contravention of the charter. Again, this
case can be decided independent of that question as well.
An ex parte hearing was held on November 15 on McKinney's request to
obtain temporary restraining orders to halt counting the votes and prevent
subsequent certification of the election results. At that hearing the
trial court denied the request for the restraining order in sweeping terms,
indicating that McKinney was not entitled to any relief under his complaint
at all. The reporter's transcript of the hearing shows that the trial
judge rejected McKinney's position on two bases: (1) the write-in
candidacy was indeed authorized by virtue of the "custom and practice"
of the city in allowing write-ins in runoff elections, but even if it
wasn't (2) McKinney had waited too long to challenge the election
and his complaint was barred by laches.
A few days later, the trial judge signed a minute order dismissing McKinney's
complaint nunc pro tunc as of the date of the denial of McKinney's
request for temporary restraining orders. [FN5]
FN5. Procedurally we have a case with a signed order of dismissal (see
Code Civ. Proc., § 581d) in which the "appellant," i.e.,
the petitioner here, has short-circuited the appellate process by bringing
a writ petition instead of going by way of ordinary appeal. Given that
the petitioner seeks the annulment of an election and the holding of a
new one, it is hard to say that he has an "adequate" remedy
by way of appeal. However, even if petitioner does have an adequate remedy
by way of appeal, the uncertainty generated by this litigation is sufficient
grounds for this court to explain its reasons for the denial of the petition
instead of just denying it summarily.
On Tuesday November 30, 2004, McKinney filed this writ proceeding in Division
One of this District (based in San Diego), seeking not only to vacate
the ex parte denial of his request for temporary restraining orders but
also to reverse the dismissal of his case as provided in the signed minute
order. The proceeding was transferred to this court (based in Santa Ana)
that very day, [FN6] which was the day that certification of the results
was scheduled. We immediately stayed the certification in order to maintain
the status quo at least long enough to study the merits of the petition
and receive written opposition. We scheduled oral argument for Friday,
December 3, and now write in the wake of that hearing.
FN6. Because several justices in Division One of this District, to whom
the case would normally be assigned, recused themselves, a panel to hear
this matter in that court was unavailable.
III. Post-Election Challenges Must Either Be Brought on Enumerated
Statutory Grounds or Be Based on the Violation of Constitutional Rights
A. McKinney Should Have Brought This Challenge Before the Election
 McKinney had a pre-election remedy he could have exercised. Election
Code section 13314, subdivision (a)(1) provides that: "Any elector
may seek a writ of mandate alleging that an error or omission has occurred,
or is about to occur, in the placing of any name on, or in the printing
of, a ballot, sample ballot, voter pamphlet, or other official matter,
or that any neglect of duty has occurred, or is about to occur." [FN7]
FN7. Subdivision (a)(2) of section 13314 provides that "A peremptory
writ of mandate shall issue only upon proof of both of the following:
(A) that the error, omission, or neglect is in violation of this [Elections]
code or the Constitution, and (B) that issuance of the writ will not substantially
interfere with the conduct of the election."
Would this subdivision, restricting mandate as a remedy to violations
of the either Constitution or the Elections Code, have precluded a pre-election
challenge by McKinney on the theory that his challenge was strictly a
matter of the city charter? No. San Diego's Municipal Code has a specific
provision allowing the city clerk and city council to look to the state
Elections Code "for guidance if there is no controlling provision"
in the code. (San Diego Municipal Code, § 27.0106, subd. (d).) Moreover,
in any event, even if McKinney could not have sought mandate pursuant
to section 13314, there is absolutely nothing in the basic law of mandamus
which precluded his bringing a challenge to Frye's qualification as
a write-in candidate, or to the ballot being printed with a space for
write-ins, before the election.
Kilbourne v. City of Carpinteria (1976) 56 Cal.App.3d 11, 128 Cal.Rptr.
133 nicely illustrates the rule that one cannot pass up a pre-election
remedy in favor of a post-election challenge. Kilbourne involved a special
recall election of a city council member, but there was a ballot error
misspelling his name. The city council member did not seek a writ of mandate
until after the election was held to invalidate the election based on
the ballot error. The appellate court held that the trial court lacked
jurisdiction to invalidate the election because the post-election relief
sought was not found in statute. The city council member should have sought
relief pre-election, as provided in the statute. (See id. at p. 16, 128
Cal.Rptr. 133 [statute allowing for "correcting ballot errors"
contemplates action "which obviously must be done before the election"].)
The bases for a post-election challenge, i.e., an "election contest,"
are enumerated in section 16100. And, as our Supreme Court pointed out
in Friends of Sierra Madre v. City of Sierra Madre, supra, 25 Cal.4th
165, 105 Cal.Rptr.2d 214, 19 P.3d 567, these grounds are exclusive: "That
the court's authority to invalidate an election is limited to the
bases for contest specified in Elections Code section 16100 and that section
is exclusive is strongly suggested by the nature of the grounds for contest
therein enumerated." (Id. at p. 192, 105 Cal.Rptr.2d 214, 19 P.3d
567 [FN8]; see also Bradley v. Perrodin, supra 106 Cal.App.4th at p. 1173,
131 Cal.Rptr.2d 402 ["Election results may only be challenged on
one of the grounds specified in section 16100."]; People ex rel.
Kerr v. County of Orange, supra, 106 Cal.App.4th 914, 932-933, 131 Cal.Rptr.2d
274 [rejecting arguments that attack on impartial analysis in ballot could
be brought post-election because it was not framed as an election contest];
Horwath v. City of East Palo Alto (1989) 212 Cal.App.3d 766, 775, 261
Cal.Rptr. 108 [most of the time analysis ends with determination of whether
plaintiff is attacking election on one of the grounds specified for election
contest in section 16100]; Alden v. Superior Court (1963) 212 Cal.App.2d
764, 768, 28 Cal.Rptr. 387 ["A proceeding to contest an election
may be brought only when and as authorized by statute."].) [FN9]
FN8. As this court noted in People ex rel. Kerr v. County of Orange (2003)
106 Cal.App.4th 914, 131 Cal.Rptr.2d 274, the Friends of Sierra Madre
opinion must be considered as a whole. We said, "Plaintiffs here
have not considered the full implications of the Friends of Sierra Madre
decision. That decision, interestingly enough, ultimately held that the
[ballot] measure being attacked was invalid because it was subject to
the California Environmental Quality Act (CEQA, Pub. Resources Code, §
21000 et seq.), and in putting it on the ballot in the first place the
city had not complied with the act. (See Friends of Sierra Madre, supra,
25 Cal.4th at p. 171, 105 Cal.Rptr.2d 214, 19 P.3d 567 ['We concluded
that CEQA compliance is required when a project is proposed and placed
on the ballot by a public agency.'].) Thus the court would say, 'That
plaintiffs here sought to set aside the election is not relevant.'
(Id. at p. 196, 105 Cal.Rptr.2d 214, 19 P.3d 567.) Even so, when the Friends
of Sierra Madre court confronted the city's argument that a postelection
challenge was not permitted by the Elections Code, the court agreed. (See
Friends of Sierra Madre, supra, 25 Cal.4th at pp. 191-194, 105 Cal.Rptr.2d
214, 19 P.3d 567.) The court explained for several pages that election
contests are limited to ' " 'matters prescribed in provisions
enumerating the grounds of contest.' " ' " (Kerr, supra,
106 Cal.App.4th at p. 933, 131 Cal.Rptr.2d 274.)
FN9. There is no doubt that the Elections Code governs disputes even in
charter cities. Article 11, section 5, subdivision (a) of our state's
Constitution provides in pertinent part: "It shall be competent in
any charter city to provide that the city governed thereunder may make
and enforce all ordinances and regulations in respect to municipal affairs,
subject only to restrictions and limitations provided in their several
charters and in respect to other matters they shall be subject to general
laws." (Emphasis added.) Moreover, the Elections Code has a number
of provisions (e.g., § § 1003, 9247) which expressly allow a
charter city to have a different provision, while most provisions of the
Elections Code do not expressly allow charter cities to have a different
rule. That itself means something: Under the rule of expressio unius est
exclusio alterius (by saying the one thing you necessarily exclude the
other), absent some express allowance by the state Elections Code for
a different rule in charter cities, the Legislature clearly intended the
provisions of the Elections Code to govern election disputes in charter cities.
At oral argument counsel for McKinney specifically disavowed any reliance
on section 16100, and we take that as a formal withdrawal of his complaint
to the degree that it requests relief in the form of an "election
contest." Accordingly, we express no opinion here whether any of
the subdivisions of section 16100 would otherwise apply to this case.
Rather, McKinney's theory is that the court must enforce the city charter
(or at least his interpretation of the charter) in terms of a request
for writ of mandate. But having passed up the chance to challenge Frye's
qualification and provision in the ballot for write-ins pre-election,
McKinney cannot bring that challenge now, after the election. He had a
remedy prior to the election if he had been willing to exercise it.
B. Any Arguable Violation of the Charter Does Not Rise to a Constitutional
There is only one remaining question. Friends of Sierra Madre, Horwath
and Kerr all recognized that an election still might be set aside if there
was malconduct that rose to constitutional levels. As Horwath framed it,
the issue is whether a "non enumerated act"--that is to say,
an act not mentioned in section 16100--affects the "electoral machinery
itself" and thus renders the result unconstitutional. (Horwath v.
City of East Palo Alto, supra, 212 Cal.App.3d at p. 775, 261 Cal.Rptr.
108, emphasis added; see also People ex rel. Kerr v. County of Orange,
supra, 106 Cal.App.4th at pp. 931-934, 131 Cal.Rptr.2d 274 [because pre-election
challenge to ballot measure to ballot statement was not brought, court
tested post-election challenge to see if asserted deficiencies rose to
constitutional level].) The Horwath court summed up the proper approach
in this area: "Under most circumstances, our analysis would end with
the conclusion that appellants are not entitled to relief because they
cannot maintain a statutory election contest. However, we do not think
section 20021 [now section 16100] could foreclose a prohibitory mandamus
action, even by a nonelector, if a nonenumerated act alleged in the petition
and affecting the electoral machinery itself rendered the resulting enactment
unconstitutional." (Id. at p. 775, 261 Cal.Rptr. 108.)
Do the facts that Frye was "qualified" by the city clerk as a
write-in candidate and there was a space on the ballot for write-in candidates,
in arguable violation of the city charter, rise to such a constitutional
level? We think not.
First of all, the fact that a ballot contains the names of candidates who
are otherwise not qualified to serve was not considered by our Legislature
to be a ground for setting aside an election when it enacted section 16100--
how much less so did the Legislature consider the mere qualification of
a candidate in arguable contravention of a local charter to be such a
ground. Only if an ineligible candidate is declared the winner may a post-election
challenge be brought.
Any other rule threatens to undermine the stability of most elections:
If any candidate on the ballot was ineligible (and therefore supposedly
drew votes away from eligible candidates), the election could be annulled
despite the fact that the statute does not provide for contests based
on the ineligibility of losers. The Legislature drew the line at the winner.
The other reason is more basic, but again centers on the need for stability
in elections. (Cf. Gooch v. Hendrix (1993) 5 Cal.4th 266, 277, 19 Cal.Rptr.2d
712, 851 P.2d 1321 [stressing need to validate elections if possible].)
There is no doubt that in this case any arguable violation of the charter
was discoverable pre-election. Now, McKinney's answer to this point
is that he, like most voters, was not aware of the city charter provision
which (again we do not decide the issue) precluded any write-in candidates.
But that is an untenable rule. It means that voters can close their eyes
and not check an election for irregularities--here, for example, apparent
with the mailing of the sample ballot--and wait to see if the ineligible
candidate has an effect on the outcome. (See Soules v. Kauaians Nukolii
Campaign Committee (9th Cir.1988) 849 F.2d 1176, 1182 [applying laches
in Hawaiian case where appellants sought federal overturning of state
election because of the importance of requiring pre-election challenges
to prevent "sandbagging on the part of wily plaintiffs"].) To
adopt McKinney's position would seriously destabilize California election
law, which has the advantage of specifically encouraging pre-election
challenges precisely in order to avoid this sort of instability.
The trial court's minute order dismissing McKinney's challenge
is affirmed, or, to be precise, we deny the petition seeking a writ ordering
the vacation of that order.
We discharge the stay of the certification we issued on Tuesday, November
30. Each party shall bear his or her costs in this proceeding.
WE CONCUR: RYLAARSDAM and O'LEARY, JJ.